THIS
MATTER is before the Court on Plaintiff Isidro
Roberto Chavez's Motion to Reverse and Remand for a
Rehearing With Supporting Memorandum (the
“Motion”), (Doc. 17), filed June 20, 2017;
Defendant Commissioner Nancy A. Berryhill's Brief in
Response to Plaintiff's Motion to Reverse and Remand the
Agency's Administrative Decision (the
“Response”), (Doc. 19), filed August 21, 2017;
and Mr. Chavez's Reply in Support of Plaintiff's
Motion to Reverse and Remand for a Rehearing (the
“Reply”), (Doc. 20), filed August 29, 2017.

Mr.
Chavez filed applications for supplemental security income
and disability insurance benefits on June 24, 2013, alleging
disability beginning June 6, 2013. (Administrative Record
“AR” 25). Mr. Chavez claimed he was limited in
his ability to work due to back pain. (AR 128). Mr.
Chavez's applications were denied initially on September
16, 2013, and upon reconsideration on April 4, 2014. (AR 25).
Mr. Chavez waived in writing the right to personally appear
and testify at a hearing. (AR 93).

On
April 21, 2015, Administrative Law Judge (“ALJ”)
Michelle K. Lindsay issued her decision, finding Mr. Chavez
not disabled at any time between his alleged disability onset
date through the date of the decision. (AR 36). Mr. Chavez
requested review by the Appeals Council, (AR 18), which was
denied, (AR 1-6), making the ALJ's decision the
Commissioner's final decision for purposes of this
appeal.

Mr.
Chavez now argues that the ALJ failed to properly consider
the opinions of Certified Nurse Practitioner (CNP) Lita
Bailly, and that the Appeals Council failed to properly
consider evidence submitted after the ALJ's decision.
(Doc. 17 at 8-17). The Court has reviewed the Motion, the
Response, the Reply, and the relevant law. Additionally, the
Court has meticulously reviewed the administrative record.
Because the ALJ erred in her consideration of Ms.
Bailly's opinions, the Court finds that Plaintiff's
Motion should be GRANTED IN PART.

“Substantial
evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Langley, 373 F.3d at 1118; Hamlin, 365 F.3d
at 1214; Doyal, 331 F.3d at 760. An ALJ's
decision “is not based on substantial evidence if it is
overwhelmed by other evidence in the record or if there is a
mere scintilla of evidence supporting” it.
Langley, 373 F.3d at 1118; Hamlin, 365 F.3d
at 1214. While the Court may not re-weigh the evidence or try
the issues de novo, its examination of the record
must include “anything that may undercut or detract
from the ALJ's findings in order to determine if the
substantiality test has been met.” Grogan v.
Barnhart, 399 F.3d 1257, 1262 (10th Cir. 2005).
“The possibility of drawing two inconsistent
conclusions from the evidence does not prevent [the
ALJ]'s findings from being supported by substantial
evidence.” Lax v. Astrue, 489 F.3d 1080, 1084
(10th Cir. 2007) (citing Zoltanski v. F.A.A., 372
F.3d 1195, 1200 (10th Cir. 2004)).

II.
Applicable Law and Sequential Evaluation Process

For
purposes of supplemental security income and disability
insurance benefits, a claimant establishes a disability when
she is unable “to engage in any substantial gainful
activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous
period of not less than 12 months.” 42 U.S.C. §
423(d)(1)(A) (2015), 42 U.S.C. § 1382c(a)(3)(A) (2004);
20 C.F.R. §§ 404.1505(a), 416.905(a) (2012). In
order to determine whether a claimant is disabled, the
Commissioner follows a five-step sequential evaluation
process (“SEP”). Bowen v. Yuckert, 482
U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520,
416.920 (2012).

At the
first four steps of the SEP, the claimant bears the burden of
showing: (1) she is not engaged in “substantial gainful
activity”; (2) she has a “severe medically
determinable . . . impairment . . . or a combination of
impairments” that has lasted or is expected to last for
at least one year; and either (3) her impairment(s) either
meet or equal one of the “Listings”[1] of presumptively
disabling impairments; or (4) she is unable to perform her
“past relevant work.” 20 C.F.R. §§
404.1520(a)(4)(i-iv), 416.920(a)(4)(i-iv); see Grogan v.
Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005). If the
ALJ determines the claimant cannot engage in past relevant
work, the ALJ will proceed to step five of the evaluation
process. At step five the Commissioner must show the claimant
is able to perform other work in the national economy,
considering the claimant's residual functional capacity
(“RFC”), age, education, and work experience.
Grogan, 399 F.3d at 1261.

III.
Background

Mr.
Chavez applied for supplemental security income and
disability insurance benefits due to back pain from his neck
to his right leg. (AR 128). At step one, the ALJ determined
that Mr. Chavez had not engaged in substantial gainful
activity since June 6, 2013, the alleged onset date. (AR 27).
At step two, the ALJ concluded that Mr. Chavez was severely
impaired by degenerative disc disease of the lumbar,
thoracic, and cervical spine. (AR 27-28). At step three, the
ALJ determined that none of Mr. Chavez's impairments,
solely or in combination, equaled one of the listed
impairments in 20 C.F.R. §§ 404.1520(d), 404.1525,
404.1526, 416.920(d), 416.925 and 416.926. (AR 28-29).

At step
four, the ALJ found that Mr. Chavez has the RFC to perform a
wide range of light work as defined in 20 C.F.R. §§
404.1567(b) and 416.967(b). (AR 29). The ALJ additionally
found that Mr. Chavez can: lift and carry 20 pounds
occasionally and 10 pounds frequently; frequently climb,
stoop, crouch, kneel, and crawl; stand and/or walk for six
hours out of an eight-hour workday with regular breaks; sit
for at ...

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